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Adjustment of Status

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The District Court approved a settlement agreement and issued an order adopting our arguments. The settlement involves remedies for class members who submitted adjustment of status and I-212 waiver applications on or after August 13, 2004 and on or before November 30, 2007.

All Adjustment of Status Content

The American Immigration Council has filed a class action lawsuit against officials at the U.S. Citizenship and Immigration Services and U.S. Department of Homeland Security in a federal district court in New York, challenging the government’s unlawful practice of depriving certain Temporary Protected Status (TPS) holders with close family relationships or employment in the United States from becoming lawful permanent residents.

The Council, with the American Immigration Lawyers Association, filed this amicus brief arguing that a grant of TPS satisfies the “admission” requirement for adjustment of status under INA § 245(a) and that, as a result, an individual who entered without inspection and later received a grant of TPS has been “admitted” and may adjust to lawful permanent resident status if otherwise eligible.

A waiver of removal under INA § 212(h) is not available to an individual who committed an aggravated felony within five years of having previously been "admitted" to the United States as a lawful permanent resident. The Council, with AILA, filed amicus briefs in numerous Courts of Appeals, successfully arguing that the § 212(h) bar to waiver eligibility applies only to noncitizens who were admitted in LPR status at a port of entry, as distinct from those who adjusted to LPR status post-entry.

Duran Gonzalez is a Ninth Circuit-wide class action challenging DHS’ refusal to follow Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). In Perez-Gonzalez, the Ninth Circuit had said that individuals who had been removed or deported could apply for adjustment of status (under INA § 245(i)) along with an accompanying I-212 waiver application. In Duran Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007), the Ninth Circuit overturned Perez-Gonzalez, deferring to the BIA’s holding that individuals who have previously been removed or deported are not eligible to apply for adjustment of status. See Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006). The Court subsequently said, however, that some plaintiffs may be able to establish that the new rule should not apply retroactively.

Following DHS's adoption of an interim regulation that gave USCIS jurisdiction over the adjustment application of an "arriving alien" in removal proceedings, the Council filed amicus briefs with the BIA and Federal Courts challenging the BIA's general refusal to reopen removal proceedings so that an "arriving alien" with an unexecuted final order could adjust with USCIS. The BIA rejected our arguments in Matter of Yauri, 25 I&N Dec. 103 (BIA 2009). Meanwhile, however, USCIS made clear that it retained jurisdiction over these cases despite the final order.

Following the Obama Administration’s February 2011 announcement that Section 3 of DOMA is unconstitutional, AILA and the Council, joined by dozens of other organizations, urged the Administration to adopt interim measures in immigration cases involving marriages to a lesbian or gay noncitizen. Such interim measures are needed to maintain the status quo until there is a final judicial or legislative resolution regarding Section 3 of DOMA.

Following the Obama Administration’s February 2011 announcement that Section 3 of DOMA is unconstitutional, AILA and the Council, joined by dozens of other organizations, urged the Administration to adopt interim measures in immigration cases involving marriages to a lesbian or gay noncitizen. Such interim measures are needed to maintain the status quo until there is a final judicial or legislative resolution regarding Section 3 of DOMA.

This Practice Advisory discusses the impact of an interim rule repealing two former regulations which barred all “arriving aliens” from adjusting status if they are in removal proceedings. This Advisory provides a brief history leading to the rule, defines key terms, discusses the impact of the rule, and suggests steps that a parolee can take to benefit from the rule.

This Practice Advisory provides an overview of the CSPA, its effective date, and its interpretation and implementation by USCIS, the U.S. Department of State, the Board of Immigration Appeals, and the courts.

On June 26, 2013, the U.S. Supreme Court issued a landmark decision in United States v. Windsor, holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. This practice advisory highlights some of the issues LGBT families will face in a post-DOMA world.

This Practice Advisory describes the Supreme Court's decision in Vartelas v. Holder, holding that the Fleuti doctrine still applies to lawful permanent residents (LPRs) with pre-IIRIRA convictions. This means that LPRs with convictions before April 1, 1997 who travel abroad do not, upon their return, face inadmissibility if their trip was brief, casual and innocent. The Advisory offers strategies for LPRs who are affected by the decision and discusses some of the decision's other potential favorable impacts.

In violation of the Immigration and Nationality Act, USCIS denies the green card applications of Temporary Protected Status (TPS) holders who first entered the United States without going through an inspection process at a port of entry, ignoring the fact that they subsequently were inspected and admitted when they were granted TPS.

In violation of the Immigration and Nationality Act, USCIS denies the green card applications of Temporary Protected Status (TPS) holders who first entered the United States without going through an inspection process at a port of entry, ignoring the fact that they subsequently were inspected and admitted when they were granted TPS.

The American Immigration Council has filed a class action lawsuit against officials at the U.S. Citizenship and Immigration Services and U.S. Department of Homeland Security in a federal district court in New York, challenging the government’s unlawful practice of depriving certain Temporary Protected Status (TPS) holders with close family relationships or employment in the United States from becoming lawful permanent residents.